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THE 


ATTORNEY-GENERAL AND 
THE CABINET 


BY 

HENRY BARRETT LEARNED 


REPRINTED FROM POLITICAL SCIENCE QUARTERLY 
VoL. XXIV., No. 3 



BOSTON 

PUBLISHED BY GINN & COMPANY 
1909 



< i 



THE 


ATTORNEY-GENERAL AND 
THE CABINET 

4 


BY 

HENRY BARRETT LEARNED 


REPRINTED FROM POLITICAL SCIENCE QUARTERLY 
VoL. XXIV., No. 3 


BOSTON 

PUBLISHED BY GINN & COMPANY 
1909 


L4- 


THE ATTORNEY-GENERAL AND THE CABINET- 


O F all the great offices established by Congress in 1789, 
that of the attorney-general was in some respects the 
least satisfactory in its organization. The portion of 
the Judiciary Act devoted to the attorney-general’s place is 
curiously brief. Its very brevity suggests the immaturity of 
the administrative-judicial system of the central government. 
Aside from his function as federal prosecutor, the attorney- 
general was to be legal adviser to the President and to the heads 
of departments. This arrangement brought him into the range 
of executive control, making him, like the secretaries, a minis¬ 
terial officer of the chief magistrate."^ 

When, in 1790, Edmund Randolph, first of the attorneys- 
general, wrote of himself as “ a sort of mongrel between the 
State and U. S.; called an officer of some rank under the 
latter, and yet thrust out to get a livelihood in the former. 
...” 3 he cast no doubtful reflection on the status and rela¬ 
tion of his position. He knew that he was head of no depart¬ 
ment, and his salary of fifteen hundred dollars^ was so small 
that probably he could not have been expected to support him¬ 
self by it. He was obliged to trust to legal practice to eke out 
a living. There is no evidence to show that he was even 
expected to remain at the seat of government, though he was 
inevitably obliged to keep in touch with the President, at least 
by occasional correspondence. And, should the federal busi¬ 
ness warrant it, the President might summon him to a confer¬ 
ence with the secretaries. That he was reckoned an adviser in 
legal matters by Washington from the start there is no doubt.s 

^ For two other articles by the present writer on certain historical features of the 
President’s cabinet, the reader is referred to the Kz/<? Review for August, 1906, and 
to The American Political Science Review for August, 1909. 

* I Statutes at Large, 92. September 24, 1789. 

* Conway, Omitted Chapters, in the Life and Papers of Edmund Randolph (1888), 
page 135- 

^ Provided by statute of September 23, 1789. i Statutes at Large, 72, sec. i. 

® Pickering quotes from memory, declaring that Washington said of Randolph: “I 

444 



THE ATTORNEY-GENERAL AND THE CABINET 


445 


The place and functions of the attorney-general remained for 
many years after 1789 subjects of reflection on the part of 
thoughtful men. Several Presidents, beginning with James 
Madison, urged reform in the office, though apparently with no 
clear notions at first as to what measures of reform were needed. 
The attorneys-general themselves were helpful in the solution of 
the problem, none more so than William Wirt and Caleb Cush¬ 
ing. The problem became clearer under the stress of numerous 
circumstances in the growth and requirements of federal admin¬ 
istration. By the close of the Civil War it was forced into the 
foreground; and Congress, in 1870, acting after long delibera¬ 
tion, established the office on a new footing, giving the attorney- 
general a place as head of the department of justice. The act 
of 1870, it may be added, made no change in law as to the duty 
of the attorney-general in giving official opinions.^ 

I 

Before the outbreak of the war in 1812, Madison called 
attention to the accumulation of business in the various depart¬ 
ments of the government, in particular in the war department, 
which was disproportionately burdened. This accumulation was 
due largely to the peculiar state of our foreign relations that for 
years had involved all the secretaries in exhausting labors. 
These relations had affected the entire administrative machinery 
of the federal government.^* As a farewell word in his last 
annual message of December, 1816, Madison urged upon Con¬ 
gress the propriety of establishing an additional executive 
department, “ to be charged with duties now overburdening 
other departments and with such as have not been annexed to 
any department. . .”3 To another kindred matter he drew 
attention in these words: 


made him ... a member of my cabinet from the first.” C. W. Upham, Life of 
Timothy Pickering, vol. iii, page 226. 

^ American and English. Encyclopedia of Law, Compiled by Garland, McGehee 
and Cockcroft (2d ed. 1897), vol. iii, page 474, footnote i. 

2 Messages and Papers of the Presidents, vol. i, page 499. Special message of 
April 20, 1812. 

vol. i, page 577, December 3. 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


446 

The course of experience recommends .... that the provision for the 
station of Attorney-General, whose residence at the seat of Govern¬ 
ment, official connections with it, and the management of the public 
business before the judiciary preclude an extensive participation in 
professional emoluments, be made more adequate to his services and 
his relinquishments, and that, with a view to his reasonable accommo¬ 
dation and to a proper depository of his official opinions and proceed¬ 
ings, there be included in the provision the usual appurtenances to a 
public office. . 

Such reflections coming from one of the leaders in the Phila¬ 
delphia Convention, who had since had much experience in 
administrative work, were not easily overlooked by several of 
his successors in the presidency. John Quincy Adams, Jack- 
son and Polk all harked back to Madison’s suggestion as to the 
position of the attorney-general. 

The salary of the attorney-general, starting at fifteen hundred 
dollars in 1789, was doubled ten years later. But Congress 
thereafter was slow in increasing it. And it was not until 1853 
that the salary was placed on a par with that of the secretaries 
and of the postmaster-general. By the appropriation act of that 
year—so far, at any rate, as salaries could mark unity and 
equality of office—the five secretaries, along with the post¬ 
master-general and the attorney-general, stood together and in 
equal rank.® 

In 1814 an attempt was made to enact a residence require¬ 
ment. In January of that year a resolution was introduced into 
the House for the express purpose of inquiring into the expe¬ 
diency of “ making it the duty of the Attorney-General of the 
United States to keep his office at the seat of Government 
during the session of Congress. . .” 3 Apparently the House 
regarded the attorney-general as the proper officer to aid it at 
times in respect to doubtful points of law. Following this reso¬ 
lution, a bill was prepared, presented and, after sundry altera- 


^ Messages and Papers of the President, i, pp. 577-78. 

* Act of March 3, 1853. 

* Annals of Congress, 1813-1814, 13th Cong., pp. 852-3. Date of resolution, 
January 5, 1814. 


No. 3J THE ATTORNEY-GENERAL AND THE CAB/NET 


447 

tions, was passed by the House in April, but got no farther than 
a second reading in the Senate." 

That this bill met Madison’s wishes, so far at least as its 
general principle was concerned, is probable.* But Madison 
was disturbed when he learned that his able attorney-general, 
William Pinkney of Maryland, was ready to resign because of 
the residence requirement likely to be enacted. Pinkney, in 
fact, did resign some months before the fate of the resolution 
was known ,3 for he was probably chiefly dependent on private 
practice in Baltimore, the city in which he resided. In accept¬ 
ing his resignation Madison wrote: “ There may be instances 
where talents and services of peculiar value outweigh the con¬ 
sideration of constant residence; and I have felt all the force of 
this truth since I have had the pleasure of numbering you 
among the partners of my public trust. . .” ^ 

When Pinkney’s successor, Richard Rush, was appointed, 
Madison is said to have stipulated that during the sessions of 
Congress Rush should remain in Washington.s 

II 

William Wirt of Virginia accepted the post of attorney- 
general offered him by President Monroe late in October, 1817, 
with a clear understanding that there was nothing in the duties 
of his office to prevent him from carrying on general practice in 
Washington, where he took up his residence, or from attending 
occasional calls to Baltimore, Philadelphia or elsewhere, if time 
allowed.^ He knew, however, that his first obligation was to 
Monroe and to the regular duties of his new position. 

"Annals of Congress, op. cit., pp. 766, iii4-5> 2023-2024. Cf.U. Adams, 
History of the United States, vol. vii, page 398. 

2 On January 29, 1814, Madison wrote to Pinkney: “On the first knowledge 
of the Bill, I was not unaware that the dilemma it imposes might deprive us of 
your associated services ... I readily acknowledge that, in a general view, the 
object of the bill is not ineligible [sic] to the Executive. . .” Writings, (ed. Rives), 
vol. ii, page 581. 

^January 25, 1814, according to Mosher, Executive Register, page 85. 

* Madison’s Writings, (ed. Rives), vol. ii, page 581. 

5 S. L. Southard, A Discourse on the Professional Character and Virtues of the late 
William Wirt (1834), page 33. 

® J. P. Kennedy, Memoirs ... of William Wirt, vol. ii, page 32. 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


448 

On the very day of his commission, November 13, he sketched 
on the fly-leaf of a record-book a simple plan which revealed 
his purpose of keeping careful records and of obtaining from 
the heads of departments who might consult him copies of all 
documents concerning which he might be asked for opinions.^ 
Some months later, under date of March 27, 1818, Wirt 
addressed a letter to Hugh Nelson, chairman of the judiciary 
committee of the House of Representatives. In this letter he 
set forth what he conceived to be some defects of the law of 
1789, the law establishing his office, and drew attention to such 
improvements as he hoped that congress might be induced to 
make. It was an illuminating, if not a constructive statement. 
It probably accomplished little, if any, change, for it never 
reached the House directly, but was filed away with other com¬ 
mittee material, and gained publicity only in 1849, fifteen years 
after Wirt’s death, when it was printed at length in the Memoirs 
of the Life of William Wirt, written by Wirt’s friend, John 
Pendleton Kennedy. Then it attracted attention, especially 
among the members of the legal profession. Its substance 
merits consideration.^ 

Wirt began with an examination of the Judiciary Act of Sep¬ 
tember 24, 1789. There the duties of the attorney-general 
were briefly set forth. They had not been more clearly elabo¬ 
rated in any later enactment. Wirt next sought for the records 
of opinions as given by his predecessors in the office—for 
letter-books, official correspondence and documentary evidence, 
but could not find a trace of these. Accordingly he concluded 
that there could have been neither consistency in the opinions 
nor uniformity in the practices of the attorneys-general. He 
indicated that in various ways he had discovered that his fore¬ 
runners had been called on for opinions from many sources— 
committees of Congress, district attorneys, collectors of customs 

^ The original record is quoted by James S. Easby-Smilh, The Department of Jus¬ 
tice: Its History and Functions (1904), page 10. 

2 Kennedy, Memoirs of. . .Wirt (ist ed., 1849), vol. ii, pp. 61-65. 
Monthly Law Reporter, December, 1850, pp. 2 ) 73 -‘M 9 - This article reprints from 
Kennedy the Wirt letter of March 27, 1818, and comments thoughtfully on Ken¬ 
nedy’s book, but makes several erroneous statements. 


No. 3] THE ATTORNEY-GENERAL AND THE CABINET 44Q 

and of public taxes, marshals and even courts-martial. Clearly 
these practices went far beyond the provisions of law. Resting 
on courtesy merely, they impressed Wirt as dangerous. His 
criticism took this form of statement: 

from the connection of the Attorney-General with the executive branch 
of the government ... his advice and o^\vi\ovL% ^ given as Attorney- 
General^ will have an official influence^ beyond, and independent of, 
whatever intrinsic merit they may possess : and whether it be sound 
policy to permit this officer or any other under the government, even 
on the application of others, to extend the influence of his office beyond 
the pale of law, and to cause it to be felt, where the laws have not con¬ 
templated that it should be felt is the point which I beg leave to 
submit. , } ^ 

The conclusions which Wirt drew maybe summarized. First, 
and above all things, provision should be made in law for keep¬ 
ing the records and preserving the documents of the office. 
This would make for consistency of opinions and uniformity of 
practices. Second, there should be a depository in the office 
of the attorney-general for the statutes of the various states, 
statutes which might be needed at short notice for aid in solv¬ 
ing legal problems. In this matter Wirt was asking simply for 
a special library to facilitate his work. Finally, he suggested 
that legal restrictions be placed on the duties of the officer for 
the obvious reason that one man could not find time to perform 
the work if he were obliged to attend to such miscellaneous 
calls as had been made upon the time and energy of his pre¬ 
decessors. The experience of several months had already 
shown to him that “ very little time is left to the Attorney- 
General to aid the salary of his office by individual engage¬ 
ments,” a fact, he thought, which might account in part for the 
number of resignations which had occurred among his pre¬ 
decessors. 

This letter marks a new epoch in the history of the attorney- 
general’s office. So far as the position of attorney-general 

^ Kennedy, op. cit ., vol. ii, page 64. 

2 Ibid ., page 64. 


450 


POLITICAL SCIENCE QUARTERLY [Vol. XXIV 


could be vitalized and molded by Wirt, it was to be done. 
After his long occupancy (1817-1829) the attorney-generalship 
had certainly risen in importance and was considered as more 
closely allied to the whole executive administration than ever 
before. It cannot be said that Wirt’s suggestions influenced 
directly congressional action, for there is no proof of such 
influence. But there was at last a man in the attorney-general- 
ship with a few clear ideas on the subject of organization which 
he was ready to make effective. This, at any rate. Congress 
must have understood. 

The details of administrative organization it is not the 
province of this paper to consider. It is enough to say that 
Wirt was provided by congress with a clerk in 1818 and a 
small sum of money ($500) for oflice-room and stationery. In 
response to criticism over inequalities in the salaries of the 
secretaries, these salaries were raised and equalized the next 
year (1819); and the salary of the attorney-general was in¬ 
creased to thirty-five hundred dollars. Other improvements of 
a minor character were made during his long term of service.* 

Early in his term Wirt had intimated to the House that by 
the law creating his position he could not be reckoned legal 
counselor to that body.* When, in January, 1820, the House 
sent an order for his official opinion on a certain subject before 
them, he deliberately declined to give the opinion. This was 
his mode of reasoning: 

It is true that, in this case, I should have the sanction of the House 
. . . and it is not less true that my respect for the House impels me 
strongly to obey the order. The precedent, however, would not be 
less dangerous on account of the purity of the motives in which it 

'Act of April 20, 1818, sec, 6. Annals of Congress, 15th Cong., ist sess., vol. ii, 
p. 2566. Lowndes complained in the House April 20, 1818, of allowing “any longer 
the discrimination which had heretofore existed in the salaries of the Heads of De¬ 
partments.” Ibid.^\o\,\\^ In the following November, the subject of sala¬ 

ries came up in both Senate and House. The discussion led to the Act of February 
20, 1819. Annals, 15th Cong., 2d sess. (1818-1819), vol. i, pp. 21 et seq.^ vol. ii, 
page 2486. Easby-Smith, The Department of Justice, page 10, gives sundry details. 

®House Documents, No. 68, i6th Cong., ist sess., vol. v. “Letter from the 
Attorney-General ... in reply to an Order of the House of Representatives,” page 
2. Dated February 3, 1820. 


No. 3] THE ATTORNEY-GENERAL AND THE CABIN El 


451 

originated. ... I may be wrong in my view of the subject; the order 
may be sanctioned by former precedents; but my predecessors in office 
have left nothing for my guidance. . .' 

He was no less explicit about his duty when, sought by the 
secretary of the navy a few months later for aid, he declared: 
“ As my official duty is confined to the giving my opinion on 
questions of law, I consider myself as having nothing to do 
with the settlement of controverted questions of fact. . 

A month after Wirt’s death, on March 18, 1834, his friend, 
Samuel L. Southard—for some years his colleague in the cab¬ 
inet—gave a public address in the hall of the House of Repre¬ 
sentatives at Washington on William Wirt’s career. Speaking 
of Wirt’s opinions as attorney-general. Southard said : 

They all relate to matters of importance in the construction of the 
laws. . . . They will prevent much uncertainty in that office hereafter; 
afford one of the best collections of materials for writing the legal and 
constitutional history of our country; and remain a proud monument 
to his industry, learning and talents. . .* 

It was seven years after Wirt’s death (1841) that the first vol¬ 
ume of the Official Opinions of the Attonncjs-General, author¬ 
ized by Congress, was issued. Similar collections have been 
compiled and printed at intervals ever since, and they constitute 
today a well-known and useful series. They amount to official 
justifications of the conduct of our Presidents.^'’^ In the first 
volume Wirt’s opinions occupied over five-hundred pages in a 
total of 1471. Not one of his predecessors was represented by 

* House Documents, op. cit. 

* Opinions of the Attorneys-General, page 254. (House Ex. Doc., 26th Cong., 
2d sess., Doc’t No. 123.) Date of opinion, April 3, 1820. 

^S. L. Southard, Discourse etc. (1834), page 36. 

Mtouse Ex. Doc., 26th Cong., 2d sess., Doc’t No. 123. See in this connection 
an article, “Contrast between the Duties of the Attorney-General of the United 
States and those of the Law Officers of the British Crown,” 38 American Law Re¬ 
view, November-December, 1904, pp. 924-925. In England the opinions of the 
law officers of the Crown are always held as confidential. It is believed by some 
lawyers that the withholding of these opinions amounts to a serious loss to the body 
of English jurisprudence. The subject was discussed in the House of Commons on 
April 26, 1901. 


452 


POLITICAL SCIENCE QUAE TEELV 


[VoL. XXIV 


much over thirty pages. The five men who came after him, 
occupying almost exactly eleven years (1829-1841)—equiva¬ 
lent in time to his single term of service—left on record 704 
pages. Perhaps Wirt’s admirable example of industry may 
have had something to do with the activity of his successors.^ 

In refusing to be led beyond the limits prescribed by law, 
Wirt doubtless contracted the action of his office. The restric¬ 
tions thus placed upon it, however, made its relations clearer to 
Congress on the one hand and to the executive on the other. 
They tended inevitably to increase the usefulness of the attorney- 
general as a member of the cabinet. 

Ill 

As a result of the growth of the United States in population, 
of its development in commerce and wealth and of its ever- 
widening territory, the administrative work of the government 
had by 1830 increased enormously. The executive depart¬ 
ments and the judiciary—confined, as they were for the most 
part, to their primitive organizations—were inadequately per¬ 
forming their functions. John Quincy Adams appreciated this 
fact, remarking on it in his first annual message."" Apparently, 
however, he could accomplish nothing toward remedying it. 

comparison of the mere paging in the original volume of Opinions^ etc.^ 
edited by Henry D. Gilpin (Washington, 1841, Doc’t No. 123), yields the following 
results: 


I. 1789-1794: Edmund Randolph . . 



. 14 pages. 

2. 1794-1795: William Bradford . . . 



• 13 


3 - 1795-1801: Charles Lee. 



. 22 

( ( 

4. 1801-1804: Levi Lincoln. 



• 37 

cc 

5. 1805-1807: J. Breckenridge . . . 



• 5 


6. 1807-1811: C. A. Rodney. . . . 



. 8 


7. 1811-1814: W. Pinkney. 



• 5 


8. 1814-1817: R. Rush. 



• 30 

(( 

9. 1817-1829: W. Wirt. 



.518 

(( 

10. 1829-1831: J. M. Berrien . . . . 



• 159 


II. 1831-1833: R. B. Taney. 



. 86 

(( 

12. 1833-1838: B. F. Butler. 



. 292 

(( 

13. 1838-1839: Felix Grundy , . . . 



. 82 

ii 

14. 1840-1841: H. D. Gilpin . . . . 



. 85 

ii 


Appendix: pp. 1383-1471. Odd opinions not included in the above record. 
2 Richardson, Messages and Papers, vol. ii, pp. 314-15. 
















No. 3] THE ATTORNEY-GENERAL AND THE CABINET 453 

When Jackson became President and referred to the need of 
attending to the business of reorganizing the attorney-general’s 
office and of placing that officer “ on the same footing in all re¬ 
spects as the heads of the other departments,” he found a Con¬ 
gress ready to heed his suggestions. Originally, as has been 
shown, the office had left its incumbent ample time for private 
practice. By Jackson’s day it was reckoned “ one of daily 
duty.” It was important to Jackson that the attorney-general 
should not be called away from the seat of government. With 
a fair increase in salary and a residence requirement, the officer 
could be charged with the general superintendence of the gov¬ 
ernment’s legal concerns.^ 

In the spring of 1830 a bill bearing on the subject was intro¬ 
duced into the Senate. Its objects were to reorganize the 
office of the attorney-general in such a way as to erect it into an 
executive department; to transfer to it from the state depart¬ 
ment the work of the patent office; to give to the attorney- 
general the superintendence of the collection of debts due the 
government; and to raise the salary of the attorney-general to 
six thousand dollars—exactly the salary then provided for each 
of the four secretaries. Such arrangements, it was argued, 
would do away with the need, at any rate for some time to 
come, of organizing a home department. The plan, it was 
assumed, would shut out the attorney-general from practice 
other than what he would be called on to conduct on behalf of 
the government in the supreme court. But the anomalous 
position of an attorney-general so burdened was at once appa¬ 
rent. In particular the plan seemed to ignore the essential fact 
that the attorney-general was primarily a law officer. And so 
it was easily defeated.^ 

Daniel Webster opposed this bill. . He had no faith in the 
attempt thus to forestall a home department. Moreover, he 
wished the attorney-general still to continue in private practice 
without too much restriction. The old salary ($3,500) was 
relatively low for the position, but not too low, it was urged. 


1 Richardson, op. cit, vol. ii, pp. 453 et seq., pp. 527 et seq. 

2 Register of Debates (1829-1830), vol. vi, pt. i, pp. 276, 322 et seq., 404. 


454 


POLITICAL SCIENCE QUARTERLY [Vol. XXIV 


because the attorney-general “ more than made up to himself 
the amount of compensation received by the others \i. e.y the 
heads of departments] who were confined to their offices. . ^ 

According to the views of one senator, to permit the attorney- 
general to engage in private practice was a legitimate and even 
a desirable way of aiding him in his equipment for performing 
well his official duties.'' 

Although the bill failed, through Webster’s efforts a plan 
was finally matured, formulated and enacted into law whereby a 
new official, known as solicitor of the treasury, was created for 
the special purpose of aiding the attorney-general in suits per¬ 
taining to treasury claims. And for the additional responsi¬ 
bility involved in the new relationship, the salary of the attorney- 
general was raised to four thousand dollars—an amount at which 
it remained until 1853.3 

That President Jackson was dissatisfied with such a compro¬ 
mise measure is clear enough from certain remarks in his second 
message of December 6, 1830. However useful in itself the 
provision for a solicitor of the treasury might be, it was not, 
according to the President, 

calculated to supersede the necessity of extending the duties and powers 
of the Attorney-General’s Office. On the contrary, I am convinced 
that the public interest would be greatly promoted by giving to that 
officer the general superintendence of the various law agents of the 
Government, and of all law proceedings, whether civil or criminal, in 
which the United States may be interested, allowing him at the same 
time such a compensation as would enable him to devote his undivided 
attention to the public business. . 

It is probable that Jackson never again expressed himself in 
print after 1830 regarding reform in the office of attorney- 

^ Register of Debates, op. cit.y p. 324. 

Ibid, y p. 323. 

^ 4 Statutes at Large, ch. cliii, sec. 10. ^^And be it further enactedy That it shall be 
the duty of the attorney general . . at the request of said solicitor, to advise with 
and direct the said solicitor as to the manner of conducting the suits, proceedings, 
and prosecutions aforesaid; and the attorney general shall receive in addition to his 
present salary, the sum of five hundred dollars per annum.” May 29, 1830. 

^ Richardson, Messages and Papers, vol. ii, page 527. 


No. 3] THE ATTORNEY-GENERAL AND THE CABINET 


455 

general. After Jackson, no president before Polk undertook 
to do so. 

Polk argued in a vein similar to that which Jackson had made 
familiar. He, too, wished to increase the duties and responsi¬ 
bilities of the officer, and recommended that he be placed on 
the same footing as the heads of departments, for “ his resi¬ 
dence and constant attention at the seat of Government are 
required. . .”" Even then Congress took no action in the 
matter for several years. Whatever projects of reform there 
may have been, they were doubtless seriously interfered with by 
the war with Mexico. 

There is a curiously interesting paragraph in this connection 
occurring in a circular letter addressed by Polk, under date of 
February 17, 1845, all the men to whom he extended invita¬ 
tions to become his cabinet associates. He wrote: 

I disapprove the practice which has sometimes prevailed, of Cabinet 
officers absenting themselves for long intervals of time from the seat of 
government, and leaving the management of their Departments to chief 
clerks, or other less responsible persons than themselves. I expect 
myself to remain constantly at Washington, unless it may be that no 
public duty requires my presence, when I may be occasionally absent, 
but then only for a short time. It is by conforming to this rule that 
the President ana his Cabinet can have any assurance that abuses will 
be prevented, and that the subordinate executive officers connected 
with them respectively will faithfully perform their duty. . 

It may be assumed that Polk exacted this significant condition 
from his first attorney-general, John Y. Mason of Virginia. But 
the attorney-generalship under Polk had two other occupants, 
Nathan Clifford of Maine and Isaac Toucey of Connecticut .3 I 
am aware of no evidence that would make it possible to say, in 
respect to this office alone, how far the condition was really 
fulfilled. So far as Polk could establish the custom of holding 
his cabinet associates in Washington he doubtless did so. 

^ Richardson, idid., vol. iv, page 415. 

’The Works of James Buchanan,ed. John Bassett Moore (1909), vol. vi, pp. iio- 
III. 

’ Mosher, page 138. 


456 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


IV 

There is ground for believing that Caleb Cushing was the 
first attorney-general of the United States who held himself 
strictly to the residence obligation and refrained from the gen¬ 
eral practice of law. 

Coming into office in March, 1853, just after the salary of 
the attorney-general had been raised to eight thousand dollars, 
Cushing at the start was placed, in respect to salary, on an 
equality with his cabinet associates, and accordingly had no very 
valid reason for entering into private practice in or outside of 
Washington. Like the other cabinet associates of Pierce, Cush¬ 
ing kept his place throughout the four years’ term. He left 
behind him a collection of official opinions that for extent alone 
has never, before or since his day, been equalled. They fill 
three in the series of volumes known as Official OpinionSy 
twenty-six of which have thus far (1909) been issued.* It 
may be doubted whether Pierce had an abler associate among 
his advisers than Cushing, though Jefferson Davis was secretary 
of war and William L. Marcy was at the head of the state 
department. Certainly there was no more trusted man in the 
cabinet. Pierce held him in the highest regard. That he was 
of real assistance in keeping the cabinet together is a matter of 
authentic history 

Cushing left to posterity quite the most careful considera¬ 
tions on the historic development of the attorney-generalship 
up to his time. These have been occasionally quoted since 
they were written. They probably did something to help 
establish the attorney-general as head of the department of 
justice in 1870. That Cushing perceived the need of some 
such organization is clear. Like Wirt, Cushing determined to 
understand the structure and functions of his office, so far as 
the laws and the practices of his predecessors could reveal them. 
Instead of presenting his conclusions—as Wirt had done—to 

^ Cushing’s opinions fill vols. v, vi, vii, covering over 2000 pages. 

2 Memorial of Caleb Cushing (Newburyport, 1879), pp. 169 et seq. Vol. 7 
Opinions of Attomeys-General, pp. 453-482. The Memorial gives various useful 
clues to Cushing’s career. There is no biography of Cushing yet written. 


No. 3] THE ATTOREEY-GENERAL AND THE CAE/NET 


457 

the chairman of a committee of Congress, he offered them to 
the President. They were written under date of March 8, 
1854, at the end of his first year’s experience. With the tech¬ 
nical portions of the “ opinion ” relating to the attorney-gen¬ 
eral and the courts, this investigation is not concerned. There 
are, however, some reflections which throw light on the relation 
of the office to the executive.’' 

According to the original theory of the office, the attorney- 
general was prompted if not actually authorized to engage in 
private practice of the law. This custom in the case of the 
English attorney-general—from whose office it is probable that 
we drew some of the features of the American office—was well 
established in 1789. But the English attorney-general was not 
then a member of the cabinet, nor is he so today."* 

Cushing doubted the expediency of allowing the head of a 
department “ under any circumstances” to continue in the prac¬ 
tice of the law. That such a custom might once have been 
justifiable, he was willing to admit. As he expressed his 
thought— 

Formerly, in an age of simple manners, when the public expenditures 
were less, the number of places less, the population of the country less, 
the frequentation of the capital less, the ingenuity of self-interest less 
.... a secretary, eminent in the legal profession might, without the 
possibility of reproach or suspicion of evil, take charge of private suits 
or interests at the seat of government. He may do so now, perhaps; 
but that is not so clear as it formerly was; and it is not easy to per¬ 
ceive any distinction in this between what befits one and another head 
of department. . . . However all these things may be, the actual in- 

^ The considerations of Cushing were published in vol. 6 Opinions of the At- 
torneys-General, pp. 326-355. They appeared also in The American Law Register 
(December, 1856), vol. v, pp. 65-94. I have found the latter volume most con¬ 
venient to use. 

.^American Law Register,\o\. v. Anson, Law and Custom, pt. ii, page 92. The 
Crown (2d ed., 1896), pp. 201-202. In 1818 the absence of the English attorney- 
general from the cabinet impressed Richard Rush as strange and worthy of remark. 
He said that “ in the complicated and daily workings of the machine of free govern¬ 
ment throughout a vast empire, I could still see room for the constant presence of 
the attorney-general in the cabinet.” Memoranda of a Residence at the Court 
of London (2d ed., Phila., 1833), page 63. 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


458 

cumbent of this office. . . experiences that its necessary duties are 
quite sufficient to tasjc to the utmost all the faculties of one man; and 
he willingly regards those recent acts, which have at length placed the 
salary of his office on equal footing with other public offices of the 
same class, as intimation at least that the Government has the same 
precise claim on his services, in time and degree, as on those of the 
Secretary of State or the Secretary of the Treasury. . .‘ 

From this passage it is clear that Cushing considered himself 
not only as the peer of his cabinet associates, but as 'in some 
sense head of a department, though he occupied what was 
technically known as an “ office.” It was to this conception of 
his position to which General Benjamin F. Butler of Massa¬ 
chusetts referred when, in 1879, Butler paid a tribute to Cush¬ 
ing, remarking that Caleb Cushing “ raised the office of At¬ 
torney-General, and organized it to be in truth and in fact a 
department of the Government. . At any rate, many of 
Cushing’s suggestions toward a better organization of the work 
of the attorney-general were enacted into the laws between 
March, 1854—the date of his “opinion”—and June, 1870, 
when the attorney-general was named in the law as head of the 
department of justice .3 

Cushing was clear regarding the real reason for the existence 
of the cabinet. It was a means of attaining unity in executive 
decision and action. As he remarked, this unity “ cannot be 
obtained by means of a plurality of persons wholly independent 
of one another, without corporate conjunction, an^ released 
from subjection to one determining will. . .” ^ With reference 
to the principal officers, he wrote that— 

the established sense of the subordination of all of them to the Presi¬ 
dent has .... come to exist, partly by construction of the constitu¬ 
tional duty of the President to take care that the laws be faithfully 

^American Law Register^ vol. v, page 93. 

^Memorial of Caleb Cushing (1879), page 169. 

* Easby-Smith, The Department of Justice (1904), pp. 15-16. 

^American Law Register, vol. v, page 81. Cushing devoted one opinion to the 
subject of the “Relation of the President to the Executive Departments,” Aug. 
31, 1855. Vol. 7 Opinions of the Attorneys-General, pp. 453-482. 


No. 3] l^HE ATTOEiVEY-GENERAL AND THE CABINET 


459 

executed, knd liis consequent necessary relation to the heads of depart¬ 
ments, and partly by deduction from the analogies of statutes. . } 

Cushing’s usefulness to Pierce, his talents, his learning and 
his persistent industry—all these matters need not make the 
student overlook certain weaknesses of which his contemporaries 
were aware. Mr. J. F. Rhodes has called attention to the fact 
that Lowell satirized Cushing as early as 1847 ^^r his lack of 
consistency and principle in politics.^" Rhodes likewise cites 
Thomas H. Benton’s criticism of him in a speech of July 21, 
1856. In his speech, Benton acknowledged that he was the 
“master-spirit” of Pierce’s cabinet, but he regarded him as 
“ unscrupulous, double-sexed, double-gendered, and hermaphro¬ 
ditic in politics, with a hinge in his knee, which he often 
crooks, that thrift may follow fawning. He governs by sub¬ 
serviency. . .” 3 In brief, Cushing never could win completely 
the trust of his fellows. Yet he proved a very useful states¬ 
man. Both Buchanan and Grant at different times sought his 
aid. He was among„the legal experts chosen as counsel to aid 
in the Geneva Tribunal. Grant named him as chief justice of 
the supreme court, but was induced to withdraw his name from 
the Senate. 

It seems fair to conclude that during a long life, extending 
from 1800 to January, 1879, in no task did Caleb Cushing prove 
more useful than in that of the attorney-generalship. He was 
the ablest organizer that the office had had since its establish¬ 
ment in 1789.^^ 

'^American Law Register vol. v, page 71. 

2 Rhodes, History of the United States since the Compromise of 1850 (1892 et 
seq,')y vol. i, page 392. Lowell’s satire is quoted by Rhodes from the Biglow Papers 
as follows; 

Gineral C. is a dreffle smart man: 

He’s ben on all sides thet give places or pelf; 

But consistency still wuz a part of his plan,— 

He’s ben true to one party—an’ thet is himself. . . 

The Writings of James Russell Lowell (Boston, 1890), vol. viii, page 66. 

® Quoted from Von Holst, History of the United States, vol. iv, 263, note. 

^ For the general facts of Cushing’s career, I have relied somewhat on Rhodes 
(History, especially vols. i, pp. 388 et seq.; iii, pp. 192, 201, 521; vi, pp. 364- 
365; vii, pp. 27-28) and on the material in the Memorial (1879). The generalization 
is based upon this, taken into connection with the evidence revealed in his three vol¬ 
umes of Opinions heretofore cited. 


460 


POLITICAL SCIENCE QUARTERLY [Vol. XXIV 


V 

The Civil War brought great pressure of work on the office 
of the attorney-general. By that period an administrative- 
judicial organization had grown up that proved under the new 
circumstances distinctly out of joint. Various legal officers in 
the separate departments gave opinions to the secretaries or 
heads that were at times inconsistent with, if not actually 
opposed to, those of the attorney-general. Many tasks were 
duplicated. In brief, there was no definite provision in law 
which unified and brought to one master mind the direction of 
the legal work of the government. As a consequence that work 
lacked symmetry and consistency. 

The four chief law-officers in 1861—with the dates of their 
separate establishments—were the attorney-general (1789), the 
assistant attorney-general (1859), the solicitor of the court of 
claims (1855) and the solicitor of the treasury (1830)—the 
latter a rather anomalous official in the treasury department 
who, for certain purposes, was under the direction of the 
attorney-general. Subordinate to these and controlled by the 
attorney-general from 1861 was a corps of scattered district 
attorneys.* The whole organization was loosely knit and dis¬ 
jointed. As was truly said, the law business of the government 
during the war period “ greatly outgrew the capacity of the 
persons authorized to transact it and the number of outside 
counsel . . . appointed subsequently to 1861 was greater than all 
the commissioned law officers of the Government in every part 
of the country. . 

The cost of this extra counsel was large, how large it would 
probably be impossible with even a fair degree of accuracy to 
say. Figures were brought forward in Congress to show that 
nearly half a million dollars ($475,190.42) could be thus 
accounted for during a portion of the years from 1861 to 1867. 
More than half that amount ($258,018.44), it was said, went 

^ These facts can be gathered from Easby-Smith, The Department of Justice, pp. 16, 
28-30. They are commented upon in the debates on the plan of a new organization, 
1867-1870, in Congress. See especially Congressional Globe^ 41st Cong., 2d sess., 
pt. iv, p. 3035 (April 27, 1870). 

^ Congressional Globe^ 41st Cong., 2d sess , pt. iv, page 3035. 


No. 3] THE ATTORNEY-GENERAL AND THE CABINET 461 

for extra legal counsel in the two years 1868—1869. To Wil¬ 
liam M. Evarts alone, fees for occasional legal aid to the gov¬ 
ernment amounted, by 1867, to approximately fifty thousand 
dollars ($47,545.86). That the government was called on to 
pay a hundred thousand dollars annually during the decade 
1860—1870 is a statement probably well within the range of 
truth. This was a significant fact, and it helped to direct atten¬ 
tion to numerous administrative weaknesses in the federal 
organization.^ 

The heritage of war expenditures assumed such ominous 
proportions that, in 1867, with a view to economy, Congress 
appointed a so-called Joint Committee on Retrenchments. 
This committee, aided perhaps by certain recommendations 
concerning the reorganization of the office by Attorney- 
General Henry Stanbery set forth by him in December of that 
year, was attracted to an investigation of the legal work of the 
government.^ 

For more than two years following, the subject of reorganiz¬ 
ing the law administration remained in the background of public 
discussion. It was lost to sight largely because of subjects of a 
more pressing and sensational nature. It matured slowly, how¬ 
ever, and came up for occasional discussion or report during 
the sessions of the thirty-ninth, fortieth and forty-first con¬ 
gresses. Finally, after a vigorous effort in the spring of 1870— 
an effort admirably directed in the House of Representatives by 
Thomas A. Jenckes of Rhode Island—a measure was enacted 
on June 22, 1870, which President Grant approved, and which 
erected the office of the attorney-general into the department 
of justice .3 

1 Congressional Globe, 41st Cong., 2d sess., pt. iv, pp. 3035 el seq. Jenckes of 
Rhode Island, speaking of the final bill for a Department of Justice, said in the 
House (April 27, 1870): “The special reason why they [i. e., the committee] have 
reported it earlier than any other relating to the organization of the Departments is 
the great expense the Government have been put to in the conduct of the numerous 
litigations involving titles to property worth millions of dollars, rights to personal lib¬ 
erty, and all the numerous litigations which can arise under the law of war.” 

^Ibid., page 3039. Easby-Smith, op. cit., page 17. 

^ The best outline of the course of Congress at various stages of the attempt to re¬ 
organize the legal work of the government is to be found in the Congressional Globe, 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


462 

Inasmuch as the chief purpose of this article is to reveal the 
historic features of the attorney-generalship which throw light 
on the relations of the attorney-general as a more or less efficient 
adviser and assistant to the President and his cabinet associates, 
the act of 1870, apart from its more technical details, has a 
peculiar interest, for it was a mature and honest effort to realize 
an ideal with respect to the attorney-general that had been occa¬ 
sionally formulated since Andrew Jackson’s day. It placed the 
attorney-general at last upon “ precisely . . . the same footing 
as the other heads of Departments.” ' He became in fact the 
chief law officer of the government. The act created no new 
department. Much legal business in the other departments, 
hitherto scattered and at loose ends, was transferred, and so 
transformed the old office of the attorney-general into a sym¬ 
metrical organization. 

A chief object of the act of 1870 was to make it possible to 
create a staff sufficiently large to transact the law business of 
the government in all parts of the country. If assistant counsel 
were employed, these extra men were to be designated either as 
assistant district attorneys or as assistants to the attorney-gen¬ 
eral ; and so, holding commissions as such, they could be made 
strictly responsible to the attorney-general for the performance 
of duties. 

During the development of administrative and legal work, 
law officers had been provided in the various executive depart¬ 
ments from time to time as they were needed. As was re- 

41st Cong., 2d sess., pt. iv, page 3039. The list of dates there given makes it easy for 
the investigator to trace back special points and proceedings to December 12, 1867, 
at which time Lawrence of Ohio offered a resolution looking toward a consolidation 
of all the law officers of the government at Washington into one department. That 
resolution marked the beginning of legislative effort. For the statute of June 22, 
1870, see 16 Statutes at Large, pp. 162-165. 

^Congressional Globe^ p. 3067 (April 28, 1870). In connection with this quotation 
from Lawrence, his general remarks on the cabinet are worth noting. He said: 
“ The Cabinet is the creature of usage only. But since the establishment of the office 
of Attorney-General the Attorney-General has been a member of the Cabinet by usage 
just as much as any head of a Department. He ought to be in the Cabinet, There 
ought not to be a Cabinet without a law officer ...” 
page 3035. 


No. 3] THE ATTORNEY-GENERAL AND THE CABINET 463 

marked by one of the speakers in the House of Represent¬ 
atives : 

Following the precedent set in the creation of the Solicitor of the 
Treasury by the act of 1830, we have authorized the appointment of 
an assistant Solicitor of the Treasury, and also a Solicitor of the In¬ 
ternal Revenue; and during the war we had a Solicitor of the War De¬ 
partment and an assistant Solicitor of the War Department . . . We 
also created a law officer for the Navy Department, and in the course 
of time a law officer has been created for the Post-Office Depart¬ 
ment . . . / 

Such facts revealed at once the possibilities of contradictory 
opinions arising from the various legal officers and the conse¬ 
quent confusion. 

In what way this confusion might affect the attorney-general 
under the old regime, and so the President, may be seen from 
another passage in the debates of 1870. The President, it was 
declared, takes the opinions of the heads of departments, 

yet, as the law now stands, it is perfectly apparent that the law officers 
of the several Departments may advise the heads of Departments in 
one way upon subjects of public importance affecting their Departments 
and the Attorney-General may advise the President and the Cabinet, 
when they are assembled, in a totally different way upon the same sub¬ 
ject. Now ... it is utterly impossible that the President can intelli¬ 
gently advise Congress or act without embarrassment on affairs relating 
to our international rights, obligations and duties when there is a law 
officer in the State Department, as now, advising the head of that De¬ 
partment in one way while the Attorney-General may be advising the 
President in a different way . . . We have an officer called an ex¬ 
aminer of claims, the law officer of the State Department, advising the 
Secretary of State in matters affecting our foreign relations, our duties 
and obligations, while the President and Cabinet are receiving advice 
from the Attorney-General . . . .* 

In 1870 the various solicitors were transferred from the 
departments where they had been located and placed under the 
ultimate control of the attorney-general. Whatever official 


Congressional Globe, page 3036. 


^ Ibid., page 3065. 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


464 

opinions they were called upon to give must henceforth be 
recorded in the office of the attorney-general. There, before 
they could become the executive law for inferior officials, these 
opinions were stamped with the attorney-general’s final approval. 
As Representative Jenckes remarked : “ It is for the purpose of 
having a unity of decision, a unity of jurisprudence, if I may 
use that expression, in the executive law of the United States, 
that this bill proposes that all the law officers therein provided 
for shall be subordinate to one head. . .” " 

The act of 1870 was, according to the characterization of 
James A. Garfield, “ substantive legislation.” ^ There was com¬ 
paratively little opposition to it in congress, for it was easily 
seen that it placed the government’s law work on an admirable 
working basis. 

VI 

After 1870 there is but one matter to be touched upon, a 
matter of consequence as throwing light on the recognized 
status of the attorney-general. By an act approved on January 
19, 1886,3 the attorney-general was definitely reckoned as fourth 
in the line of possible succession to the Presidency, in case of 
the removal, death, resignation or inability of President and 
Vice-President. The act was due largely to the persistent 
efforts of Senator George F. Hoar of Massachusetts. The 
occasion of these efforts was the conviction in the public mind, 
which had been aroused by the attempt in July, 1881, to kill 
President Garfield, of the grave and serious necessity of placing 
new safeguards about the life of the chief magistrate.'^ 

The original law of March, 1792, which provided for the 
succession to the Presidency, had declared that, in case of 

'^Congressional Globe, page 3036. It may be noted that there was one new officer 
of large importance created by the act of 1870—the solicitor-general of the United 
States. It was proposed to have in this new position “ a man of sufficient learning, 
ability and experience that he can be sent to New Orleans or to New York, or into 
any court wherever the Government has any interest in litigation, and there present 
the case of the United States as it should be presented. . Page 3035. 

Ibid., page 3037. 

^2 Statutes at Large, i. 

^ Congressional Record, 49th Cong., 1st sess., December 15, 1885, page 181. 


No. 3] THE ATTORNEY’GENERAL AND THE CABINET 455 

vacancy, “ the President of the Senate pro tempore^ and in case 
there shall be no President of the Senate, then the Speaker of 
the House of Representatives, for the time being, shall act as 
President of the United States, until the disability be removed, 
or a President shall be elected.” ^ Even at the epoch of its 
formulation, the principle underlying this language was not 
deemed satisfactory by such men as Madison, Gouverneur Mor¬ 
ris, Livermore and Fitzsimons. There were suggestions at the 
time that it might be wiser to call on the Chief Justice or the 
secretary of state. But the Senate, having originated the form 
of statement, were unwilling to yield; and so it was at length 
adopted and went into the statute-book.=® 

The subject of the succession was next brought to public 
notice in June, 1856, by Senator John J. Crittenden of Ken¬ 
tucky. Crittenden had become impressed by the fact that from 
the fourth of March to the first of December in every second 
year there was no Speaker of the House. He presented a 
resolution to the Senate which called on the judiciary com¬ 
mittee of that body to examine the subject and make a report. 
On August 5 following, a report—familiarly known as the 

Butler Report,” from Senator Butler of South Carolina, chair¬ 
man—was read to the Senate. The Report concluded with a 
carefully formulated bill. The bill was never acted upon. The 
report, buried in a volume of Senate documents, was lost sight 
of and forgotten for many years.^ 

The Butler Report attempted to supplement the old law of 
1792. On the assumption that there was no President of the 
Senate pro tempore or Speaker of the House, it recommended : 

^ I Statutes at Large, 240. The entire act is quoted by E. Stanwood, A History 
of the Presidency (1898), pp. 36 et seq. 

® Madison and Morris objected late in the Convention of 1787 (August 27). See 
W. M. Meigs, The Growth of the Constitution (2d ed,. 1900), pp. 211 et seq. The 
course of the debate can be followed in the Annals of Congress^ especially under dates 
of December 20, 1790, January 10, 13, October 24, November 15, 23, 30, Decem¬ 
ber I, 21, 1791, etc. 

3 Congressional Globe, 1855-1856, ist sess., 34th Cong., pt. ii, pp. 1476, 1930-1, 
2020. P'or Butler Report, see Senate Documents, 1855-1856, ii, no. 260, page 7. 
There is no reference to this matter in Mrs. Chapman Coleman, Life of John J. 
Crittenden etc. (2 vols., 1871). 


POLITICAL SCIENCE QUARTERLY 


[VoL. XXIV 


466 


“ that the duties prescribed by act of Congress shall devolve 
on the following officers: first, on the chief justice, when he 
has not participated in the trial of the President; and next, on 
the justices of the Supreme Court, according to the date of 
their commissions. . . . ” ^ 

This was the single constructive recommendation. It is, 
however, noteworthy that the authors first of all stated their 
belief that the members of the cabinet “ in some prescribed 
order ” were 


the proper functionaries to fill the vacancy. In cases of death they 
would be the persons most fit for the occasion. There are other 
circumstances, however, which would make the cabinet officers unfit to 
occupy the place of the President. In case of his impeachment for 
high political offences, the cabinet might be implicated, as participes 
criminiSy and ought not to be in position of allies . . . 

Moreover, the question as to whether the cabinet could be con¬ 
sidered official after the official functions of the President— 
their principal—had terminated or were suspended, was puzzling 
to the committee and was left unanswered.^ 

Within a week of the shooting of Garfield, the Butler Report 
was referred to in public discussions over the possible conse¬ 
quences of the tragedy. In particular Senator Beck of Ken¬ 
tucky wrote of it in a letter to the Louisville Courier-Journal. 3 
In the following autumn—Garfield having died on September 
19—it happened that the country was without either a President 
of the Senate or a Speaker of the House. Should President 
Arthur die, there would be no legal provision for a successor. 
Statesmen were alarmed. Efforts to remedy the law were 
begun as soon as Congress assembled in December, and they 
continued at intervals during three successive congresses, the 
forty-seventh, the forty-eighth and the forty-ninth. Senator 
Hoar’s persistency was finally rewarded in 1886.^^ 

^Butler Report, page 5. 

^ Ibid, pp. 4-5. 

® Beck-Murphy correspondence (July, 1881), given in Congressional Recora^Dt- 
cember 16, 1885. 

* Ibid., Dec. i6. See especially Senator Maxey’s remarks. 


No. 3] THE ATTORNEY-GENERAL AND THE CABINET 467 

Introducing the subject of succession in the last stage of his 
effort, Senator Hoar remarked that one of the important alter¬ 
ations in the existing law, that of 1792, was the substitution of— 

members of the Cabinet in the order of their official seniority—the 
order in which the various Departments were created, except that the 
head of the Department of Justice, which is the last Department 
created by law, is continued in his old place as Attorney-General, rank¬ 
ing the heads of the Departments created since the original establish¬ 
ment of the Cabinet . . . 

Thus the attorney-general, considered as a cabinet-associate of 
the President from 1789, was once more acknowledged as a 
peer among his colleagues—a position that he had in reality 
held since 1853. 

Henry Barrett Learned. 

New Haven, Conn. 

' The discussion of the bill may be followed in the Congressional Record^ December 
15, 1885-January 19, 1886. Senator Hoar prints the bill as enacted in his Autobi¬ 
ography of Seventy Years (1903), vol. ii, pp. 170-1. Hetheresays: “Idrewand in¬ 
troduced the existing law” (page 170). It is interesting to note that Senator Hoar 
got the substance of the bill from a speech made in the House of Representatives 
sometime between 1873-1875 by his brother, Ebenezer R. Hoar, first attorney- 
general under Grant (1869-1870). I have not been able to discover this speech* 
Congressional Record, December 16, 1885, p. 215. 


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Marxism vs. Socialism.V. G. Simkhovitch 

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